14 July 2006
Louis Rene Beres
Professor of International Law
Department of Political Science
West Lafayette IN 47907
E MAIL BERES@POLSCI.PURDUE.EDU
Images of unrelieved human misery in Gaza would appear to suggest Israeli cruelty and insensitivity. In fact, exactly the opposite is true. By deliberately placing elderly women and young children in areas from which lethal rockets are launched into Israeli homes and schools, it is only the Palestinian leaders who openly commit violations of the law of war. Specifically, their insidious practice of "human shields" – the same practice currently underway in Hezbollah-controlled areas of Lebanon - is far more than a expression of cowardice. It also represents the oft-codified crime of "perfidy" under international law.
Several Palestinian terror groups including both Hamas and the "moderate" Palestinian Authority are now actively planning for mega-terror attacks upon Israel. These unprecedented attacks, possibly in close cooperation with al-Qaeda, would use chemical and/or biological weapons of mass destruction. Over time, if Iran should begin to transfer its growing inventory of nuclear materials to Hezbollah, Israel could also face Palestinian-directed nuclear terrorism. To a significant extent, these insidious preparations are already underway in Gaza.
What government on earth could be expected to sit back passively and render its population vulnerable to historically unprecedented levels of mass-slaughter? Would we, in the United States, sit quietly by as rockets rained down upon American cities from terrorist sanctuaries somewhere on our northern or southern borders? Would we allow such carnage to continue with impunity? Would capitulation and surrender be the proper or excusable reaction of a sovereign state sworn to protect its populations?
Quite remarkably, although always unrecognized and unacknowledged, Israel has been willing to keep its essential counterterrorism operations in Gaza consistent with the established standards of humanitarian international law. Palestinian violence, however, is persistently in violation of all civilized rules and principles of engagement. And all this after Israel very painfully “disengaged” from Gaza on the presumption that the Palestinians – finally – would put an end to their relentless barrage of terror.
Terrorism is more than just bad behavior. Terrorism is a distinct and codified crime under international law. When terrorists represent populations that enthusiastically support such attacks, which is certainly well-documented among the Palestinian community, and where these terrorists also find easy refuge among hospitable populations, full responsibility for all ensuing counterterrorist harms lies exclusively with the criminals. Understood in terms of ongoing Palestinian terrorism and Israeli self-defense, this means that the Palestinian side alone must now bear full legal responsibility for Arab civilian casualties in Gaza.
International law is not a suicide pact. Rather, it correctly offers an authoritative body of rules and procedures that always permits states to express their "inherent right of self-defense." When terrorist organizations openly celebrate the explosive "martyrdom" of Palestinian children, and when Palestinian leaders unashamedly seek religious redemption through the mass-murder of Jewish children, the terrorists have absolutely no legal right to demand sanctuary. Anywhere. Under international law they are HOSTES HUMANI GENERIS, "Common enemies of humankind." Such murderers must be punished severely wherever they are found.
Palestinian terrorism has become all-too familiar. Using bombs filled with nails, razor blades and screws dipped in rat poison, the killers proceed to maim and burn Israeli civilians with only cheers and blessings from the politically-appointed Islamic clergy. As for those who command and control the suicide-bombers' mayhem, they cower cravenly in their towns and cities, taking exquisite care to find personal safety amidst densely-packed Arab populations. Special IDF counterterrorism and commando units then attempt to identify and target only the terrorist leaders and to minimize collateral harms. Sometimes, however, such harms simply can't be avoided, even by the IDF, which follows its code of "Purity of Arms" far more stringently than any other nation's army – including our own.
Deception can be legally acceptable in armed conflict, but the Hague Regulations unambiguously disallow placement of military assets or personnel in heavily populated civilian areas. Further prohibition of perfidy is found at Protocol I of 1977 additional to the Geneva Conventions of 1949. It is widely recognized that these rules are also binding on the basis of customary international law. Perfidy represents an especially serious violation of the Law of War, one identified as a "grave breach" at Article 147 of Geneva Convention IV. The critical legal effect of perfidy committed by Palestinian terrorist leaders is to immunize Israel from any responsibility for inadvertent counterterrorist harms done to Arab civilians. Even if Hamas and Fatah and Islamic Jihad and their sister terror groups did not deliberately engage in perfidy, any Palestinian-created link between civilians and terrorist activities would always give Israel full and incontestable legal justification for defensive military action.
All combatants, including Palestinian terrorists, are bound by the Law of War of international law. This requirement is found at Article 3, common to the four Geneva Conventions of August 12, 1949, and at the two protocols to these Conventions. Protocol I applies humanitarian international law to all conflicts fought for "self-determination," the stated objective of all Palestinian fighters. A product of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977), this Protocol brings all irregular forces within the full scope of international law. In this connection, the terms "fighter" and "irregular" are exceptionally generous in describing Palestinian terrorists, fanatical criminals who normally target only civilians and whose characteristic mode of "battle" is not military engagement, but rather primal religious sacrifice via the wanton murder of old women and young children.
Israel has both the right and the obligation under international law to protect its citizens from criminal acts of terrorism. Should it ever decide to yield to Palestinian perfidy in its indispensable war against escalating terror violence, Israel would surrender this important right and undermine this fundamental obligation. The clear effect of such capitulation would be to make potential victims of us all.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism and international law.